Citation Nr: 1516181
Decision Date: 04/14/15 Archive Date: 04/21/15
DOCKET NO. 08-13 422 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho
THE ISSUE
Entitlement to a total disability rating by reason of individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Allan T. Fenley, Attorney at Law
ATTORNEY FOR THE BOARD
J. Nichols, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1966 to May 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.
By way of a June 2013 determination, the Board denied the issue currently on appeal. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). A July 2014 Memorandum Decision was issued setting aside the Board's June 2013 decision and remanding it back to the Board. The Veteran was provided an opportunity to submit additional evidence in support of his claim and additional evidence was submitted in January 2015.
FINDINGS OF FACT
1. The Veteran is in receipt of service connection for posttraumatic stress disorder (PTSD), rated at 70 percent disabling, and right ear hearing loss disability (noncompensable). His combined rating is 70 percent from October 21, 2002.
2. The combined effects of the Veteran's service connected disabilities render him unemployable.
CONCLUSION OF LAW
The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
To the extent the action taken herein below is favorable to the Veteran, further discussion of VA's duties to notify and assist is not necessary at this time.
VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014).
Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
In this case, the Veteran is in receipt of entitlement to service connection for PTSD, rated at 70 percent disabling, effective October 21, 2002, and right ear hearing loss disability (noncompensable). His combined rating is 70 percent and he is eligible for consideration for a TDIU on a schedular basis. He has filed for individual unemployability prior to having any service-connected disabilities, but for the purposes of this appeal, the Veteran filed his TDIU claim in September 2003, following his grant of service connection for PTSD at 70 percent disabling. See September 2009 VA Form 21-8940, Application for Increased Compensation Based Upon Unemployability.
VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992).
For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved.
The Veteran was previously employed as a farmer and laborer. On his VA Form 21-8940, he indicated that he last worked in 1992 until his PTSD symptoms made it too difficult for him to work. A 2003 VA PTSD examination report indicates that the Veteran is at a third grade reading level. The Veteran has a high school education but no other formal education or training and licensure. Although the record reflects that the Veteran may have been doing some work on his family's farm until around 2002, it appears that this was marginal employment as in it did not produce sufficient income (estimating income of $100.00 per month). See April 2002 VA Form 21-8940.
The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2014); Beaty, 6 Vet. App. at 537 and Obert v. Brown, 5 Vet. App. 30, 33 (1993). To this end, the Board notes that the record contains several VA opinions which indicate that it is less likely than not that the Veteran is unemployable due to his service-connected right ear hearing loss disability or his PTSD (considering them separately) and also less likely than not that the Veteran is unemployable due to the combined effects of both of his service-connected disabilities. See January 2012 VA Audiology Examination Report; January 2012 VA PTSD Examination Report; April 2014 VA Opinion on Unemployability due to Combined Service-Connected Disabilities.
In support of his claim, the Veteran submitted a vocational consultant's employment assessment report dated January 2015. The Veteran was interviewed and pertinent VA records were reviewed. The vocational consultant considered the Veteran's history of employment, his skill set and the sustainability of employment given the Veteran's PTSD symptoms. He also considered whether the Veteran's skill set would work for a sedentary job. He also noted that the Veteran has applied to work in phosphate plants within a reasonable driving distance from his home but he could not hear appropriately. He concluded that the Veteran's impairments due to his PTSD preclude his ability to maintain employment even in unskilled work.
After a review of the evidence, the Board finds that the combined effects of the Veteran's service-connected disabilities have caused significant occupational impairment, thus rendering him unemployable. In arriving at this determination, the Board has specifically considered the Veteran's employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b). The Veteran worked as a laborer and a farmer almost his entire life. He was last employed as a Range Rider which involves riding horses and herding cows and horses; he has not had any experience with a sedentary job. If he was not formally employed, he was helping his father on the farm and has held summer jobs off and on with the Cattle Association and as a weed sprayer. See January 2012 VA PTSD Examination Report. Based on his laborer/farmer background, he would not have transferable skills that would allow him to hold a "desk job." He has had no more than a high school education but cannot even read at the high school level.
While the VA examiners have found that there are other alternative work environments which would be appropriate for the Veteran in light of his service-connected disabilities, when considering the combined effects of the Veteran's service-connected disabilities, the Board finds the January 2015 vocational consultant's report to be the most probative as the consultant specifically took into consideration the Veteran's background and transferable skill set and found that he would not be suited for sedentary work. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The 2012 VA examiners'' opinions in comparison appeared to be broad statements such as statements suggesting that the Veteran would be able to work if he could be in a working environment where he was not in danger of missing warning signals and where personal communication was not imperative or stating that the Veteran could perform adequately in a work setting which is loosely supervised, and which required little or no social interaction. The January 2015 opinion provided much more specific data which contemplates the Veteran's strictly labor/farm background and the feasibility given his employment and education background when arriving at the conclusion that the Veteran's service-connected disabilities render him unemployable. The Board notes that based on the Veteran's work history, it is difficult to earn more than marginal employment performing odd jobs such as weeding.
Based on these facts and the Veteran's background, the Board concludes that the Veteran is not able to maintain substantially gainful employment. Given the Veteran's limited educational background and his occupational history as a farmer, the Board finds that the limitations described by the Veteran due to his service-connected disabilities preclude him from having been able to realistically obtain and maintain any form of gainful employment. Consequently, the Board finds that the weight of the evidence supports a grant of a TDIU.
ORDER
A TDIU rating is granted, subject to the laws controlling payment of VA benefits.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs